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Full-Text Articles in Law
Striking Nafta Gold: Glamis Advances Investor-State Arbitration , Jordan C. Kahn
Striking Nafta Gold: Glamis Advances Investor-State Arbitration , Jordan C. Kahn
Fordham International Law Journal
On June 9, 2009, a controversial and longstanding North American Free Trade Agreement ("NAFTA") arbitration was resolved in favor of the United States. Overviews of the dispute and NAFTA investor-state arbitrations are set forth in Parts I and II, respectively. Part III explains that the process employed was commendably transparent, especially in accommodating tribal interests, and should serve as a model for future proceedings. The award positively advances two international legal protections: regulatory takings and "fair and equitable treatment." Although the takings analysis described in Part IV confirms that NAFTA claimants have procedural advantages over domestic litigants, its pro-government framework …
The Legal Obstacles To Foreign Direct Investment In Mexico's Oil Sector, Martin Miranda
The Legal Obstacles To Foreign Direct Investment In Mexico's Oil Sector, Martin Miranda
Fordham International Law Journal
This Note will present the arguments for and against foreign direct investment, but assess the Pemex reforms under the assumption that reform through privatization is necessary for survival. This Note will examine the likelihood of success for the recently proposed Pemex reforms, and what the Mexican government may expect with regards to Pemex's future. Part I provides an introduction to FDI and the legal and political framework that President Calderon must work in to accomplish Pemex reforms. Part II presents two financial models for energy reform that may serve as a blueprint for Pemex: 1) Mexico's electric power deregulatory scheme, …
The Terrorism Bar To Asylum In Australia, Canada, The United Kingdom, And The United States: Transporting Best Practices, Won Kidane
Fordham International Law Journal
This Article assesses the wisdom of the substantive laws enacted in the wake of 9/11 and the procedures set up to combat this enemy. This Article is divided into four parts. Part I evaluates the doctrinal debate relating to the definition of terror, terrorism and terrorists. More particularly, it attemps to demonstrate the difficulty in identify the "terrorist" that needs to be excluded, and how that definition affects the immigration laws. Part II sets the stage for a comparative analysis by briefly surverying the terrorism-related immigration laws and procedures of each jurisdiction to this study. Part III provides a detailed …
Fighting Piracy In Somalia (And Elsewhere): Why More Is Needed, Milena Sterio
Fighting Piracy In Somalia (And Elsewhere): Why More Is Needed, Milena Sterio
Fordham International Law Journal
This Article argues that pirates should be treated as terrorists and that piracy-fighting countries should rely on a variety of antiterrorist conventions to justify the capture and prosecution of pirates. To provide a comprehensive outlook on piracy, Part I of this Article describes the history of piracy and its reappearance in the modern world. Part II briefly describes the resurgence of modern-day piracy, first in Southeast Asia and then in Somalia. Part III provides the current international legal framework for battling piracy, by focusing first on the definition of piracy in international law, and then on the existing international legal …
Japan's New Criminal Jury Trial System: In Need Of More Transparency, More Access, And More Time, Matthew J. Wilson
Japan's New Criminal Jury Trial System: In Need Of More Transparency, More Access, And More Time, Matthew J. Wilson
Fordham International Law Journal
The lay judge system has considerable potential both in concept and form. To realize its full potential, the system needs to overcome various structural impediments and cultural challenges. This Article further contributes to the emerging discussion by detailing three related areas that merit attention and reform if the system is going to realize its full potential. Namely, the lay judge system would benefit from 1) increased transparency by eliminating punitive measures against citizen judges desiring to freely speak about the trial proceedings or deliberation process oncle the trial is complete; 2) impoved access to the interrogation of detained suspects and …
Who Is Making International Tax Policy?: International Organizations As Power Players In A High Stakes World, Diane Ring
Who Is Making International Tax Policy?: International Organizations As Power Players In A High Stakes World, Diane Ring
Fordham International Law Journal
This Article begins the process of mapping the inquiry into the role of international organizations in tax policy. It identifies four basic questions that must be addressed and specifies the more sophisticated inquiries that must then be undertaken. This Article commences the empirical examination through two case studies: one regarding inclusion of a mandatory arbitration clause in the Organization for Economic Co-Operation and Development (“OECD”) Model Tax Convention on Income and Capital, and one regarding recent international efforts to curb “harmful” tax competition. Part I outlines the rising importance of international tax matters and the reasons that international organizations are …
Tilting The Balance Between Capital And Labor? The Effects Of Regulatory Arbitrage In European Corporate Law On Employees, Martin Gelter
Tilting The Balance Between Capital And Labor? The Effects Of Regulatory Arbitrage In European Corporate Law On Employees, Martin Gelter
Fordham International Law Journal
This Article examines an issue of regulatory competition that seems to be of greater interest for the corporate governance of large, publicly traded firms: the position of the employees. The Article proceeds in three parts. Part I sets out the basic premise of the analysis by describing why employees may be relevant to the corporate governance structure. This Part will briefly draw on economic theory to explain why, at least under certain circumstances, it can be beneficial to create an institutional structure that facilitates long-term commitment between firms and their employees. Part II identifies aspects of European corporate law that …
A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach
A Tiny Problem With Huge Implications - Nanotech Agents As Enablers Or Substitutes For Banned Chemical Weapons: Is A New Treaty Needed?, Evan J. Wallach
Fordham International Law Journal
The underlying thesis of this Article is that while smaller-sized particles and separate nano-sized carriers of known agents are clearly covered by the CWC, nanomimics are not as squarely within the relevant provisions. The bulk of this Article deals with that question. Despite the invitation to woolgather, this Article is limited to the tightest possible analytical approach. Part I begins with definitions of chemical and biological agents within existing treaties, and of nanoproducts, including those existing beyond presently-known technical capabilities, but which are at least reasonably conceivable (“nanobots”). Part II provides an overview of treaty law that is potentially applicable …
Sex Work And Human Rights In Africa, Chi Mgbako, Laura A. Smith
Sex Work And Human Rights In Africa, Chi Mgbako, Laura A. Smith
Fordham International Law Journal
This Article serves as the first law review essay to engage the feminist debates regarding sex work and human rights in the African context. This Article surveys "antiprostitution" and "pro-sex-worker" feminist arguments and activities in the sub-Saharan Africa; explores the debate surrounding the legal frameworks of legalization, decriminalization, prohibition, and abolition of prostitution in a number of African countries including Senegal, where prostitution is legal and regulated, and South Africa where prostitution remains illegal despite civil society advocacy for decriminalization; and calls for the empowerment of African sex workers by arguing for a human rights-based transformation in African governments' legal …
Federalism And The Rule Of Law: Perspectives From The European Court Of Justice, Koen Lenaerts
Federalism And The Rule Of Law: Perspectives From The European Court Of Justice, Koen Lenaerts
Fordham International Law Journal
This Article unfolds as follows: Section I looks at the "pervasive effect" of European Union ("EU") law upon the substantive law of the Member States. Instead of attempting to cover all cases where this effect has arisen, a selective but in-depth approach is preferred. In this regard, four areas falling within the competences of the Member States will be discussed, namely education, family law, direct taxation, and health care. Section II is devoted to the pervasive effects of EU law upon national rules of procedure. Taking four cases as examples, this Section sets out to demonstrate that the European Court …
Of Trailers And Jet Skis: Is The Case Law On Article 34 Tfeu Hurtling In A New Direction?, Peter Oliver
Of Trailers And Jet Skis: Is The Case Law On Article 34 Tfeu Hurtling In A New Direction?, Peter Oliver
Fordham International Law Journal
The provision which is the focus of this Article is article 34 of the Treaty on the Functioning of the European Union ("TFEU" or "Treaty") (formerly article 28 EC). This Article focuses on an analysis of two recent judgments on this important issue delivered by the European Court of Justice ("Court") in 2009, namely the Trailers decision and the Mickelsson decision. Before reaching these judgments, the Article discusses very briefly the relationship between the four freedoms (free movement of goods, persons, services, and capital) and then, as to the scope of article 34, reminds the reader of what is "the …
The Growing Influence Of European Union Law, Piet Eeckhout
The Growing Influence Of European Union Law, Piet Eeckhout
Fordham International Law Journal
This Essay discusses a number of themes which show the growing influence of European Union ("EU") law. Four themes were chosen to illustrate that influence. The themes are interconnected, and hopefully bringing them together allows the reader to get a sense of the unique experiment which this "new legal order" continues to conduct. Part I examines the EU's own "federal question:" what exactly is the scope of EU law, and how is it determined? How does the case law, in particular that of the EU's supreme court, the European Court of Justice ("ECJ"), determine the boundaries of the EU law …
Selected Opinions Of Lord Slynn As Advocate General, Rosa Greaves
Selected Opinions Of Lord Slynn As Advocate General, Rosa Greaves
Fordham International Law Journal
During Lord Gordon Slynn's period in office as the Advocate General at the European Court of Justice ("ECJ" or "Court") in Luxembourg, Lord Slynn delivered opinions in many significant cases covering the whole range of European Communities ("EC") competences, from cases concerning common agricultural policy and civil services to those concerned with the development of the common market and the interpretation of the substantive law of the European Community. Comments on Lord Slynn's opinions in cases concerning the substantive law of the internal market and on state aid cases have been published in other works. In this short Essay, the …
Stop The Integration Principle?, Prof. Dr. Jan H. Jans
Stop The Integration Principle?, Prof. Dr. Jan H. Jans
Fordham International Law Journal
Lord Slynn of Hadley is probably not primarily known as an environmental lawyer. His contributions to the development of European environmental law are, however, considerable. On May 24, 1988, Slynn delivered his famous opinion in the so-called "Danish Bottles" case. In that case, the European Court of Justice ("ECJ") held that a system requiring manufacturers and importers to market beer and soft drinks only in reusable containers (which had to be approved by a National Agency for the Protection of the Environment) was subject to what is now article 34 of the Treaty on the Functioning of the European Union …
Eu Competition Policy In The Financial Crisis: Extraordinary Measures, Michael Reynolds, Sarah Macrory, Michelle Chowdhury
Eu Competition Policy In The Financial Crisis: Extraordinary Measures, Michael Reynolds, Sarah Macrory, Michelle Chowdhury
Fordham International Law Journal
This Article reviews the framework of competition law in the European Union ("UN"), specifically in relation to state aid, mergers, and cartel enforcement. In each case it considers how the European Commission's ("Commission") response can and has adapted existing procedures to pressing circumstances while maintaining rigidity in the application of legal principles.
Controlling Dominance In European Markets, Erika Szyszczak
Controlling Dominance In European Markets, Erika Szyszczak
Fordham International Law Journal
The theme of this Article addresses an area of European Union ("EU") law that has witnessed continuing complex questions for regulation: the role of law in the evolving processes of controlling dominance through competition laws in the liberalized markets of Europe. These markets offer new challenges for competition law, especially where new business platforms emerge. These markets also present new challenges in identifying how far a private law right of freedom to contract and rights to property can be reconciled with the demise of the state in providing essential services to citizens and the replacement of such services with new …
Challenges For The Protection Of Fundamental Rights In The Eu At The Time Of The Entry Into Force Of The Lisbon Treaty, Jacqueline Dutheil De La Rochere
Challenges For The Protection Of Fundamental Rights In The Eu At The Time Of The Entry Into Force Of The Lisbon Treaty, Jacqueline Dutheil De La Rochere
Fordham International Law Journal
Concomitant with the entry into force of the Lisbon Treaty on December 1, 2009, many of the alleged weaknesses of the mechanisms of protection of fundamental rights are in the process of being addressed: the Charter of the Fundamental Rights of the European Union ("Charter") has acquired binding force, the European Union is due to accede to the European Convention of Human Rights, and the Fundamental Rights Agency ("Agency") has been established as a European Union ("EU") body in charge of monitoring the correct implementation of fundamental rights throughout the Union. This Essay will address three main questions. First, a …
From Baghdad To Bagram: The Length & Strength Of The Suspension Clause After Boumediene, Justin D. D'Aloia
From Baghdad To Bagram: The Length & Strength Of The Suspension Clause After Boumediene, Justin D. D'Aloia
Fordham International Law Journal
This is a predictive Note that will examine the doctrine relating to war-time detention and endeavor to decipher who currently maintains a right to challenge executive detention in the wake of Boumediene. This Note therefore does not centrally discuss the authority of the United States to detain wartime prisoners, what procedure is due to detainees, the wisdom of the Boumediene approach to constitutional domain, or any other related issues. Instead, this Note will attempt to define the outer contours of the Suspension Clause by looking through the Boumediene prism to determine who may presently invoke the protections of the Suspension …
"A Mere Pretense Of Justice": Complementarity, Sham Trials, And Victor's Justice At The Rwanda Tribunal, Lars Waldorf
"A Mere Pretense Of Justice": Complementarity, Sham Trials, And Victor's Justice At The Rwanda Tribunal, Lars Waldorf
Fordham International Law Journal
This Article beings by sketching the background of the recent Rwandan Patriotic Front ("RPF") trial, focusing on domestic impunity for RPF crimes and strained relations between Rwanda and the International Criminal Tribunal for Rwanda ("ICTR"). It next describes and analyzes the components of the ICTR-Rwanda agreement: the agreement itself, the RPF trial, and the ICTR prosecutor's assessment of the trial. The Article then explores the larger issues of prosecutorial discretion and independence, complementarily, and victor's justice, while examining the implications for the International Criminal Court ("ICC").
If At First You Don't Succeed: Vote, Vote Again: Analyzing The Second Referendum Phenomenon In Eu Treaty Change, Gráinne De Búrca
If At First You Don't Succeed: Vote, Vote Again: Analyzing The Second Referendum Phenomenon In Eu Treaty Change, Gráinne De Búrca
Fordham International Law Journal
The aim of this Essay is to probe the causes of the European Union's ("EU") second-referendum practice with a view to better understand what strikes many observers as a procedurally bizarre and democratically dubious exercise. It is not the intention of this Essay to offer any justification for the practice, but rather to explain the factors specific to the EU which have contributed to its recurrence.
Antitrust In A Globalized Economy: The Unique Enforcement Challenges Faced By Small And Developing Jurisdictions, Michal S. Gal
Antitrust In A Globalized Economy: The Unique Enforcement Challenges Faced By Small And Developing Jurisdictions, Michal S. Gal
Fordham International Law Journal
One of the main challenges of this decade in the antitrust arena is the creation of some form of cooperative international antitrust regime. The potential benefit of increased international trade and cooperative competition policies to all countries involved are enormous. This Article analyzes this issue from the point of view of small and developing jurisdictions. Part I sets the stage by suggesting a typology of the challenges created by globalization. Part II analyzes the current international antitrust regime from a wider perspective that incorporates the enforcement challenges faced by small and developing jurisdictions. Part III builds upon these findings and …
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Notice Otherwise Given: Will In Absentia Trials At The Special Tribunal For Lebanon Violate Human Rights?, Chris Jenks
Fordham International Law Journal
This Article examines whether the Special Tribunal for Lebanon's ("STL's") in absentia trial provisions violate human right norms and, if so, whether the right to tribunal-appointed counsel or to retrial remedies any such violation. Part I explains the operation of the STL, with particular attention drawn to the funding difficulties the tribunal faces, and details the STL's in absentia trial provisions and subsequent right to counsel and retrial. Part II compares the in absentia trial provisions of the STL to those of other tribunals to demonstrate that the STL's in absentia trial provisions represent a radical departure from prior law. …
On Options Of Citizens And Moral Choices Of States: Gays And European Federalism, Dimitry Kochenov
On Options Of Citizens And Moral Choices Of States: Gays And European Federalism, Dimitry Kochenov
Fordham International Law Journal
Focusing on gay rights in the European Union, this Article addresses questions all dealing with the likely dynamics of gay-rights development in Europen in the near future. This is done by applying to the legal context of the European integration project of Kreimer's vision of federalism, Karst's analysis of the "freedom of intimate association," and Koppelman's representation of sexual-orientation discrimination as sex discrimination. The argument will proceed as follows: Part I gives a short outline of the importance of federalism for the preservation of liberty. Part II will build on Koppelman's analysis of the nature of sexual orientation discrimination as …
A Legal Regime For The Mining Of Helium-3 On The Moon: U.S. Policy Options, Richard B. Bilder
A Legal Regime For The Mining Of Helium-3 On The Moon: U.S. Policy Options, Richard B. Bilder
Fordham International Law Journal
Absent an agreed international legal framework, attempts by the United States or any other nation or private entity to acquire and bring to Earth significant quantities of He-3 could give rise to controversy and conflict. Consequently, it seems timely to revisit the issue of the legal regime potentially applicable to exploiting He-3 and other lunar resources. Part I of this Article will briefly discuss the technical and economic prospects for the develop of He-3-based fusion energy. Part II lays out the present legal situation concerning the exploitation of lunar resources such as He-3. Part III analyzes whether it is prudent …
Uprooting Children In The Name Of Equity, Merle H. Weiner
Uprooting Children In The Name Of Equity, Merle H. Weiner
Fordham International Law Journal
This Article ultimately recommends that courts should reign in, if not abandon, the doctrine of equitable estoppel as it is used in Hague child abduction cases. This Article supports its thesis in four parts. Part I describes the equitable estoppel argument as it has emerged within the Hague Convention framework. Part II then examines the Convention's legislative history and argues that the doctrine is incompatible with that history. Part III analyzes the principle policy basis offered in support of the doctrine: the deterrence of concealment. Part IV focuses on the best way to address concealment within the confines of the …
Nuclear Weapons And The Rule Of Law, Sergio Duarte
Nuclear Weapons And The Rule Of Law, Sergio Duarte
Fordham International Law Journal
No abstract provided.
Between A Rock And A Hard Place: Tensions Between The U.S.-Rok Status Of Forces Agreement And The Duty To Ensure Individual Rights Under The Iccpr , Rijie Ernie Gao
Between A Rock And A Hard Place: Tensions Between The U.S.-Rok Status Of Forces Agreement And The Duty To Ensure Individual Rights Under The Iccpr , Rijie Ernie Gao
Fordham International Law Journal
This Note argues that the Korea SOFA illustrates how the current approach to implementing SOFA agreements hinder state parties from complying with their legal obligations under article 2 of the ICCPR. Part I first provides an overview of the two competing bodies of international law at issue: the law governing the U.S. approach to foreign criminal jurisdiction, on the one hand, and the development of human rights law and the terms of article 2 of the ICCPR, on the other. Part II assesses the incompatibility between ICCPR and SOFA obligations from the point of view of both receiving and sending …
Rule 11 Bis: An Examination Of The Process Of Referrals To National Courts In Icty Jurisprudence, Olympia Bekou
Rule 11 Bis: An Examination Of The Process Of Referrals To National Courts In Icty Jurisprudence, Olympia Bekou
Fordham International Law Journal
Rule 11 bis forms a cornerstone of the ICTY's completion strategy. Part I of this Article provides an analysis of the elements of the rule. This Part will highlight the purpose of Rule 11 bis, offer an overview of the legal basis through which the transfer of jurisdiction has taken place in the ICTY, discuss the referral process and the elements necessary for a successful referral, and, finally, round out the discussion with an overview of the decision making process of the referral bench in identifying which state is suitable to proceed with a trial once it is determined that …
An Unsatisfactory Case Of Self-Determination: Resolving Puerto Rico's Political Status, Lani E. Medina
An Unsatisfactory Case Of Self-Determination: Resolving Puerto Rico's Political Status, Lani E. Medina
Fordham International Law Journal
In the case of Puerto Rico, the exercise of self-determination has raised, and continues to raise, particularly difficult questions that have not been adequately addressed. Indeed, as legal scholars Gary Lawson and Robert Sloane observe in a recent article, “[t]he profound issues raised by the domestic and international legal status of Puerto Rico need to be faced and resolved.” Accordingly, this Note focuses on the application of the principle of self-determination to the people of Puerto Rico. Part I provides an overview of the development of the principle of self-determination in international law and Puerto Rico's commonwealth status. Part II …
The Precedent Of Pretrial Release At The Icty: A Road Better Left Less Traveled, Megan A. Fairlie
The Precedent Of Pretrial Release At The Icty: A Road Better Left Less Traveled, Megan A. Fairlie
Fordham International Law Journal
This Article facilitates just such an inquiry by tracking the progression of pretrial provisional release at the ICTY. This Article first considers pretrial release (or release pursuant to bail) in the abstract along with those rights that may theoretically be implicated by an act of pretrial detention. It then examines the relevant activity of the ICTY's predecessors, interim advancements in human rights law and the absence of a release-based statutory provision at the Yugoslav Tribunal. The applicable rule adopted by the ICTY is then assessed, along with subsequent amendments. At each stage, specific regard is given to the rights affected …